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91–041 PDF 2004

S. Hrg. 108–318

NOMINATION OF SCOTT J. BLOCH

HEARING

BEFORE THE

COMMITTEE ON 

GOVERNMENTAL AFFAIRS 

UNITED STATES SENATE

ONE HUNDRED EIGHTH CONGRESS

FIRST SESSION

ON THE

NOMINATION OF SCOTT J. BLOCH TO BE SPECIAL COUNSEL, OFFICE 

OF SPECIAL COUNSEL

NOVEMBER 12, 2003

Printed for the use of the Committee on Governmental Affairs

(

(II)

COMMITTEE ON GOVERNMENTAL AFFAIRS 

SUSAN M. COLLINS, Maine, Chairman 

TED STEVENS, Alaska 

GEORGE V. VOINOVICH, Ohio 

NORM COLEMAN, Minnesota 

ARLEN SPECTER, Pennsylvania 

ROBERT F. BENNETT, Utah 

PETER G. FITZGERALD, Illinois 

JOHN E. SUNUNU, New Hampshire 

RICHARD C. SHELBY, Alabama 

JOSEPH I. LIEBERMAN, Connecticut 

CARL LEVIN, Michigan 

DANIEL K. AKAKA, Hawaii 

RICHARD J. DURBIN, Illinois 

THOMAS R. CARPER, Deleware 

MARK DAYTON, Minnesota 

FRANK LAUTENBERG, New Jersey 

MARK PRYOR, Arkansas 

MICHAEL D. BOPP, Staff Director and Counsel 

JOHANNA L. HARDY, Senior Counsel 

MICHAEL J. RUSSELL, Staff Director, Financial Management, 

The Budget, and International Security Subcommittee 

JOYCE A. RECHTSCHAFFEN, Minority Staff Director and Counsel 

LAWRENCE B. NOVEY, Minority Counsel 

JENNIFER E. HAMILTON, Minority Research Assistant 

NANCI E. LANGLEY, Minority Deputy Staff Director, Financial Management, 

The Budget, and International Security Subcommittee 

JENNIFER TYREE, Minority Counsel, Financial Management, 

The Budget, and International Security Subcommittee 

AMY B. NEWHOUSE, Chief Clerk 

(III)

C O N T E N T S 

Opening statements: Page 

Senator Fitzgerald ............................................................................................ 1 

Senator Akaka .................................................................................................. 7

WITNESSES 

WEDNESDAY, NOVEMBER 12, 2003

Hon. Sam Brownback, a U.S. Senator from the State of Kansas ........................ 2

Scott J. Bloch to be Special Counsel, Office of Special Counsel .......................... 4 

ALPHABETICAL LIST OF WITNESSES

Bloch, Scott J.: 

Testimony .......................................................................................................... 4

Prepared statement .......................................................................................... 13

Biographical and professional information requested of nominees .............. 14

Pre-hearing questionnaire and responses for the Record ............................. 20

Post-hearing questions and responses for the Record from: 

Senator Akaka ............................................................................................... 46

Senator Akaka, questions and revised responses ....................................... 50

Post-hearing questions and responses for the Record from: 

Senator Levin ................................................................................................ 54

Senator Levin, additional question and response ...................................... 57

Brownback, Hon. Sam: 

Testimony .......................................................................................................... 2

(1)

NOMINATION OF SCOTT J. BLOCH 

WEDNESDAY, NOVEMBER 12, 2003

U.S. SENATE, COMMITTEE ON GOVERNMENTAL AFFAIRS, Washington, DC. 

The Committee met, pursuant to notice, at 2:07 p.m., in room 

SD–342, Dirksen Senate Office Building, Hon. Peter G. Fitzgerald 

presiding. 

Present: Senators Fitzgerald and Akaka. 

OPENING STATEMENT OF SENATOR FITZGERALD 

Senator FITZGERALD. I am going to call this meeting to order. 

Senator Akaka is on his way but he has asked for us to begin. 

This afternoon the Governmental Affairs Committee will hold 

two hearings. The first hearing will be on the President’s nominee 

to be Special Counsel. Upon conclusion of the nomination hearing, 

the Committee will immediately hold a legislative hearing on S. 

1358, the Federal Employee Protection of Disclosures Act, the socalled whistleblower bill. I am chairing both hearings since the 

nomination and the bill are within the subject matter jurisdiction 

of the Subcommittee on Financial Management, the Budget, and 

International Security which I Chair. I am pleased to have this opportunity today, and I look forward to hearing from all of the witnesses. 

I will also be pleased to recognize Senator Akaka, when he arrives. He is not only the Ranking Member of the Subcommittee on 

Financial Management, the Budget, and International Security but 

he also is the sponsor of S. 1358 which we will address shortly. 

First, we will take up the nomination of Scott J. Bloch to be Special Counsel of the U.S. Office of Special Counsel. I would like to 

welcome Mr. Bloch today as well as Senator Brownback from Kansas, Mr. Bloch’s home State. The President has selected you for a 

very important position in our government, and I congratulate you 

on your nomination, Mr. Bloch. 

Mr. Bloch has filed responses to the Committee’s biographical 

and financial questionnaire, answered prehearing questions submitted by the Committee, and has had his financial statement reviewed by the Office of Government Ethics. Without objection, this 

information will be made part of the hearing record, with the exception of the financial data which are on file and available for 

public inspection in the Committee offices. In addition, I personally 

have reviewed the FBI background investigation report on Mr. 

Bloch. 

2

President Bush nominated Mr. Bloch to be Special Counsel on 

June 26, 2003. Mr. Bloch has a record of 15 years as a practicing 

attorney with extensive experience in employment and contract 

law. In November 2001, Mr. Bloch was appointed as Associate Director and Counsel to the Task Force for Faith-based and Community Initiatives in the U.S. Department of Justice. In January of 

this year, Mr. Bloch assumed the position of Deputy Director and 

Counsel for the task force. 

The Office of Special Counsel is an independent Federal agency 

with investigative and prosecutorial responsibilities regarding 

three statutes: The Civil Service Reform Act, the Whistleblower 

Protection Act, and the Hatch Act. The primary mission of the Office of Special Counsel is to protect Federal employees from prohibited personnel practices, especially reprisals for whistleblowing. As 

part of its work to protect Federal Government whistleblowers, the 

Office of Special Counsel is authorized to receive, investigate, and 

prosecute allegations of prohibited personnel practices. The office 

also may file complaints with the Merit Systems Protection Board 

to seek disciplinary action against individuals who are found to 

have committed a prohibited personnel practice. 

The Office of Special Counsel also is responsible for enforcing the 

Hatch Act that addresses political activities, protecting the re-employment rights of veterans and reservists, and operating a disclosure unit to which Federal employees may disclose information 

about government waste, fraud, and abuse. 

The Office of Special Counsel is a vital agency in our Federal 

Government that impacts Federal employees. The nominee is being 

considered for an important position of leadership in this agency, 

and we appreciate his presence today before the Committee. 

Before I swear in the witness I would like to call upon my colleague from Kansas, Senator Brownback, to introduce the nominee. 

I want to thank Senator Brownback for coming here today. I understand that Senator Roberts also wanted to be here today but he has 

a scheduling conflict with the Intelligence Committee. So Senator 

Brownback, welcome to the Governmental Affairs Committee, and 

you may proceed. 

OPENING STATEMENT OF SENATOR BROWNBACK, A U.S. 

SENATOR FROM THE STATE OF KANSAS 

Senator BROWNBACK. Thank you very much, Mr. Chairman. 

Thank you very much for holding this hearing today as well. Indeed my colleague Senator Roberts would like to be here, but for 

a scheduling conflict. We both strongly support Mr. Bloch’s nomination. 

As you noted in your introduction, he has 15 years of litigation 

experience ranging in a wide range, civil rights to employment law 

and private practice, in areas quite impressive. This experience, 

coupled with his recent work at the Department of Justice I think 

makes him really an ideal fit for this Office of Special Counsel, and 

as Special Counsel in the Office of Special Counsel. 

I am pleased to say he is a fellow Kansan. He was a partner in 

a prominent Kansas law firm for 15 years. He taught at the University of Kansas School of Law, my alma mater. I believe we even 

have a coach from your State now at our alma mater, which I do 

3

not want to bring up a sore point with the starting of basketball 

season, but he is doing a very nice job. 

He was an honors graduate at the University of Kansas. He was 

on the board of editors of the law review, won awards for his writing in law school. He served on charitable and pro bono boards including the Douglas County Bar Grievance Committee, where he 

oversaw, as chair of the investigation and reporting on attorneys 

accused of unethical conduct. He was on the board of discipline 

that heard testimony and made findings to the Kansas Supreme 

Court for the discipline of attorneys. So he is used to this role in 

a whistleblower capacity within his own profession. 

In the practice of law, Mr. Bloch has been a champion of employee rights, ethics, and protection of whistleblowers. He has demonstrated a resolve to pursue just results even in the face of difficult odds. He has served in the Justice Department for the last 

2 years, bringing his wife Catherine and their seven children to 

live in Virginia. I have met and talked with his wife and two of 

their children are here with him today. I do not think you would 

probably mind, Mr. Chairman, if he introduced his wife and children at this point in time. 

Senator FITZGERALD. That would be great, if you could do that. 

Mr. BLOCH. Thank you, Senator. My wife Catherine is to my 

right. My daughter Mary, whose confirmation ceremony I attended 

last Monday at our church and now she is reciprocating. 

Senator FITZGERALD. How old is Mary? 

Mr. BLOCH. Mary is 13. Beatrice is 10 years old. 

Senator FITZGERALD. Welcome. 

Mr. BLOCH. My brother William, who came on the red-eye from 

California. He is a plaintiff’s employment attorney in California. 

Senator FITZGERALD. Welcome. Thank you for being here. You 

have five other kids? 

Mr. BLOCH. That is correct. My youngest daughter celebrates her 

birthday today, her first birthday. I also want to recognize my son 

who could not be here, but wanted to be, who is in the Marines and 

just returned from a tour in Iraq, but he had to report back to California for duty. 

Senator FITZGERALD. Thank him for his service for us. Thank 

you. 

Senator BROWNBACK. He has obviously a strong tie with his family, and when he was telling me about his son and the work that 

he was doing in the Marines in Iraq, that shows a lot of strong 

character as well in a very difficult battle that we are involved in. 

I would just conclude by saying that the Office of Special Counsel 

needs someone with rock solid ethics, leadership and a passion for 

justice. I think you find that in Mr. Bloch. That is why Senator 

Roberts and myself wholeheartedly support his nomination into 

this important position in the Federal Government. Mr. Chairman, 

thank you very much. 

Senator FITZGERALD. Senator Brownback, thank you very much 

for introducing the witness for us, and thank you for being here 

today. We appreciate you taking time out of your schedule. Now, 

I would like to go ahead and swear in the witness, and thank Senator Brownback for being here today. All witnesses are sworn in 

under this Committee’s rules and have to take an oath. 

4

1 The prepared statement of Mr. Bloch appears in the Appendix on page 13. 

Biographical and professional information appears in the Appendix on page 14. 

Pre-hearing questionnaire and responses appears in the Appendix on page 20. 

Post-hearing questions and responses appears in the Appendix on page 50. 

[Witness sworn.] 

If you would like, Mr. Bloch, you could proceed now with your 

statement and then we will proceed to questions. So you may 

begin. Thank you for introducing your family earlier. 

TESTIMONY OF SCOTT J. BLOCH,1 TO BE SPECIAL COUNSEL IN 

THE OFFICE OF SPECIAL COUNSEL 

Mr. BLOCH. Thank you, Mr. Chairman, and Ranking Member, 

Senator Akaka, when he gets here, and the Members of the Committee. I am grateful and deeply honored by the nomination of the 

President of the United States to the Office of Special Counsel. I 

am equally honored by the introduction from Senator Brownback 

from my great State of Kansas, and his and Senator Roberts’ support of my nomination to this honorable position within our Federal Government. 

The challenges to the Office of Special Counsel are daunting, but 

not insurmountable. If you honor me with confirmation to this position I will do my utmost to carry on the high standards of integrity 

and efficiency of the Office of Special Counsel. 

As I reflect today on my background which has prepared me for 

this challenge, I am reminded that I grew up with an understanding of the importance of the underdog. My father was a lifelong member of a union, the Writers Guild of America, and he 

taught me the need for protections for those who are trying to earn 

a living for their families, who stand as a lone voice against a powerful industry. In my law practice I learned to champion the small 

worker and found this work to be the most rewarding of my legal 

career. That sense of justice and the rule of law inspired me to 

come to Washington for a career in public service. It continues to 

inspire me in this new position for which I have been nominated. 

In Plato’s Republic, Socrates asks whether justice is merely the 

will of the stronger. Socrates was a gadfly of Athens and may, in 

a certain sense be considered the first whistleblower for he exposed 

official corruption and called for real justice based on principle, 

based on each person’s due. 

OSC stands as a gadfly to those who would impose their will on 

the weaker, who would punish whistleblowers for exposing corruption, waste, and illegality that endanger the public. OSC stands as 

a guardian of justice and accountability in the Executive Branch. 

Responsible government is vital to the functioning of our country. 

The founders of our Nation set up a system of self-government with 

checks and balances. From the important protections of whistleblowers and civil and political rights of employees, to enforcing the 

Hatch Act, to protecting re-employment rights and veterans preferences for those who are literally putting their lives at risk for our 

liberty and the liberty of others throughout the world, I see this office as being a part of an ethical, self-governing nation. 

I look forward to helping protect our country and the important 

work of nearly three million civilian employees in the Executive 

Branch. I look forward to working with you, Mr. Chairman, and 

5

the Members of this Committee and the professional staff at OSC 

to improve the merit system of civil service. I thank you for this 

opportunity to appear before this Committee and to answer your 

questions. 

Senator FITZGERALD. Thank you. That was a very good statement 

and I like your reference to Socrates, and your citing of him as perhaps the first whistleblower is very apropos. So thank you for that 

insight. 

I am going to ask you a series of questions that our Committee 

asks of all nominees. These are standard questions, and then we 

will proceed into more specifically tailored questions regarding the 

Office of Special Counsel. 

First, is there anything that you are aware of in your background 

which might present a conflict of interest with the duties of the office to which you have been nominated? 

Mr. BLOCH. No. 

Senator FITZGERALD. Do you know of anything, personal or otherwise, that would in any way prevent you from fully and honorably 

discharging the responsibilities of the office to which you have been 

nominated? 

Mr. BLOCH. No. 

Senator FITZGERALD. Do you agree without reservation to respond to any reasonable summons to appear and testify before any 

duly constituted committee of Congress if you are confirmed? 

Mr. BLOCH. I do. 

Senator FITZGERALD. Mr. Bloch, you have extensive private sector experience in litigation, and most recently you have been serving as Counsel and Deputy Director for the Task Force for Faithbased and Community Initiatives at the Department of Justice. 

How will you bring these experiences to bear on the work that you 

will undertake as a Special Counsel at the Office of Special Counsel? 

Mr. BLOCH. Thank, you, Senator. I appreciate this opportunity to 

explore how my background can help with the position of Special 

Counsel. It is my understanding that the office requires someone 

who has a wide background in employment laws, who has a passion for protecting the rights of workers, who has an understanding 

of the interplay between various statutes and common-law doctrines concerning employment law. I believe I fit that bill. In my 

15 years of practice in my law firm I was our resident expert in 

the area of employment law and quickly developed a specialty in 

plaintiffs employment work, which comprised better than a majority of my practice. I also represented——

Senator FITZGERALD. Did you also represent some defendants in 

labor lawsuits against companies? Did you represent some of the 

companies being sued? 

Mr. BLOCH. Yes, I did, Senator. I believe that my background, 

which began when I was a law student and I clerked for a national 

labor law firm——

Senator FITZGERALD. Is that Seyfarth, Shaw? 

Mr. BLOCH. Seyfarth, Shaw, from your fine State. 

Senator FITZGERALD. But you worked in the Los Angeles office; 

is that right? 

6

Mr. BLOCH. I did. We had the best of both worlds out there. In 

that capacity, that whetted my appetite for the area of labor law 

and employment law. When I got into private practice I began to 

represent individuals and found that that was both fascinating and 

rewarding because you got to develop the facts from the outset and 

really see the perspective from the worker. 

Senator FITZGERALD. Can you give us some examples of the types 

of plaintiffs you represented, the types of aggrieved workers? What 

kind of cases would these have been? 

Mr. BLOCH. They ranged anywhere from civil rights claims, sexual discrimination, racial discrimination, disability discrimination, 

fair labor standards practices cases, Family Medical Leave Act 

cases, retaliation cases. Retaliation is a rather broad topic and it 

includes a number of things under its umbrella, such as whistleblowing, retaliation for exercise of a protected right such as testifying, jury duty, workers compensation claims, and so on. There is 

also a subcategory of discrimination claims that result in a retaliation or a reprisal against an employee. I represented plaintiffs in 

all of those areas. In all of those areas actually I represented some 

corporations as well because we would often have—since I was the 

resident expert in the firm, all of the firm clients would come to 

me for help with any kind of appearance before an administrative 

agency or a local agency investigating claims at the early stages of 

any kind of discrimination or reprisal against an employee. So I 

have been experienced in all of those areas. And other areas as 

well, under ERISA, Section 1132 claims, 1983 claims involving constitutional rights, as well as protected employment rights and property interests. 

Senator FITZGERALD. You really have a very broad labor law 

background. Did you only do labor law cases when you were in the 

private sector or did you do other things? 

Mr. BLOCH. No, I was in a smaller firm. We had about 14 lawyers so you had to—I was the chair of the litigation department for 

the last 5 years of practice, so you had to be able to think on your 

feet and do a lot of different areas. I practiced in securities fraud, 

some medical malpractice, both on the plaintiffs and the defense 

side, as well as complex commercial litigation, ethics law which included claims against law firms both regional as well as national. 

So I had about 60 percent of my practice, 65 percent, in employment and the rest was a smattering of these other areas, including 

administrative law. 

Senator FITZGERALD. Now the Special Counsel actually has several roles. On one hand, they are advocates for whistleblowers. On 

the other hand, in certain cases they may be required to actually 

prosecute government officials who have had the whistle blown on 

them. Where it merits prosecution, the Office of Special Counsel 

has to prosecute them; is that right? What is your understanding 

of the office based on your preparation for going into the office? 

Mr. BLOCH. Thank you, Senator. The office, as I understand it, 

is to be a protector or guardian of the merit system of civil service 

and the merit system principles as found in Title 5 of the United 

States Codes, Section 2301, to make certain that we have an efficient workforce and that employees are not reprised against, or 

mistreated or discriminated against on non-merit related issues, as 

7

well as bringing corrective actions to protect those employees, and 

when necessary and when merited, to bring disciplinary complaints 

against supervisors or even high level officials. So there is clearly 

a dual, maybe even a triple role that the office serves. 

Senator FITZGERALD. Have there been any actions brought 

against high-level officials of which you are aware? 

Mr. BLOCH. Yes, there have been a number. Some of them, as I 

understand it, have not public record but some are. But, yes, there 

have been. 

Senator FITZGERALD. Is there not a public record of these proceedings? 

Mr. BLOCH. I was limited in what I could get into with the Office 

of Special Counsel and the Acting Special Counsel, so there were 

certain things I was not allowed to see. Names, for instance. But 

I could see expurgated or redacted files, or redacted letters that 

had been written to the President or to high-level officials in agencies concerning other high-level officials. So, yes, I am aware of 

some. 

Senator FITZGERALD. So there are prosecutions going on and the 

public does not know anything about them? 

Mr. BLOCH. No, I am not saying that it is withheld from the public. There are some things as I understand it, of a national security 

nature that may be protected and I am not able to look at them 

at this time. 

Senator FITZGERALD. Things that do not have an intelligence reason or a national security reason for protecting, do they make public those prosecutions when the Office of Special Counsel is actually 

going after a government official for waste, fraud or abuse that is 

actionable under the whistleblowers statute? Do they make that 

publicly available? 

Mr. BLOCH. Senator, my understanding is it is a matter of public 

record when a disciplinary action is filed or a corrective action is 

filed with MSPB. The fact or existence of an investigation file I 

cannot honestly tell you as I sit here that I know that the investigations files are public. I do not think they are, but I really would 

have to ask a staff member. 

Senator FITZGERALD. But when an action is filed—we have been 

joined by our Ranking Member, Senator Akaka. Thank you very 

much for being here. Senator, you may have an opening statement 

that you wish to give, and we would be happy to allow you to proceed at this time. 

OPENING STATEMENT OF SENATOR AKAKA 

Senator AKAKA. Thank you very much, Mr. Chairman. I want to 

thank you for your leadership and I want to tell you that I am 

pleased you are having this nomination hearing for Scott Bloch to 

be Special Counsel. I want to join you in welcoming his lovely family, and also any friends who are joining him this afternoon. So, 

welcome. 

The Office of Special Counsel was created under the Civil Service 

Reform Act way back in 1978. It is an independent Federal investigative and prosecutorial agency whose primary mission is to safeguard the merit system by protecting Federal employees and applicants from prohibited personnel practices. Unfortunately, for many 

8

years, OSC was seen as more of an adversary than an ally to whistleblowers. During congressional hearings in the 1980’s, this Committee was urged to abolish the OSC. Instead we chose to strengthen the agency and gave it a new charter. The charter is to protect 

employees, especially whistleblowers, from prohibited personnel 

practices and to act in the interest of employees who seek its assistance. 

Our Committee affirmed that the OSC should not act contrary to 

those interests. This requires a Special Counsel to be a strong and 

independent advocate for whistleblowers. The Special Counsel must 

also be an educator, one who will ensure that Federal employees 

understand their rights and protections when disclosing waste, 

fraud, and abuse within the government. All too often workers find 

out too late that they are not covered by the Whistleblower Protection Act or are unaware of their rights and protections. 

If confirmed, I urge you to make it a priority to inform Federal 

employees of their rights and protections or the lack thereof. Employees should not be losing their jobs or be subject to possible civil 

or criminal penalties because their agencies failed to educate its 

workforce of their rights and protections under the law. Federal 

civil servants should be encouraged to come forward with information vital to ensuring government accountability and a secure Nation. 

Mr. Bloch, I want to thank you for being here today, and I am 

glad to have your family here as well. Thank you very much, Mr. 

Chairman. 

Senator FITZGERALD. Mr. Bloch, I was wondering if you would 

want to describe what you think may be some of the challenges the 

Office of Special Counsel might face in the coming years. As Special Counsel, how will you address these challenges and which 

issues will be your top priorities? 

Mr. BLOCH. Thank you, Senator. I have thought about this issue. 

I think it is very important to go in with an idea of what it is that 

you are facing in the way of challenges and what kind of vision you 

might have for the future. I look forward to working with this Committee and with you and with the staff at OSC to implement a 

broad vision for the future. That includes sending a message to the 

Federal workforce and to the public that efficiency, expeditious 

handling of claims is very important. That whistleblowers are 

going to be protected in not only name, and not only in words, but 

in action. That with the changing nature of the Federal personnel 

system as we see in several different agencies, that we have to 

fashion a better system for employee understanding of rights, because it can become very confusing, or there can be a crossfire of 

different avenues and different procedures that employees are put 

into and they are not sure what to do and become very confused. 

So we have to educate, and I thank the Ranking Member for bringing that to bear here today, that education is a very important part 

of the future of this office. 

Senator FITZGERALD. The office has quite a backlog right now, 

does it not? 

Mr. BLOCH. Yes, Senator. I am aware of the backlog. At the current time there are really three divisions of OSC where a backlog 

can become a serious issue or it has become something of a serious 

9

issue. Leaving aside for the moment the Hatch Act unit, the three 

areas under the prohibited personnel practices that we think of 

when we talk about the backlog are in the CEU, or Complaints Examining Unit, the IPD, or the Investigation and Prosecution Division, and then the DU, or the Disclosure Unit. As you know, the 

primary mission of OSC is the protection of employees from prohibited personnel practices, especially reprisal for whistleblowing. 

Then secondarily, although not a far second, is a secure channel for 

the receipt of disclosures of wrongdoing in the government, of gross 

waste, of gross mismanagement, of illegality, of substantial danger 

to the public health or welfare. 

Senator FITZGERALD. Do you know how large of a staff you will 

have under you? 

Mr. BLOCH. Currently there are about 103 full-time equivalents. 

Special Counsel’s office has a number of positions that have not 

been refilled; that have become vacant. So that the budget that exists for OSC has not been fully utilized for the full-time equivalents 

now. In the President’s budget for 2004, in addition to filling approximately six or seven positions that have been vacant, there is 

an additional opportunity for filling an additional seven, I think, 

full-time equivalents to bring it to 113 under the 2004 budget, 

which I, of course, support. 

Senator FITZGERALD. Do you know how many cases wind up with 

the OSC? 

Mr. BLOCH. The number of matters that come in for prohibited 

personnel practices is a little over 2,000. 

Senator FITZGERALD. A year? 

Mr. BLOCH. A little under 2,000 I should say, per year average. 

Senator FITZGERALD. Has that been going up over the years, do 

you know? 

Mr. BLOCH. In reality, in the last 3 years there has been a little 

bit of a dip. There has been a year where it went down, and then 

went back up to pretty much a level that was experienced a few 

years ago. 

Senator FITZGERALD. How many of those cases typically get prosecuted? 

Mr. BLOCH. That are recommended for actual prosecution, that 

are not closed for one reason or another, or settled in an alternative dispute resolution? 

Senator FITZGERALD. Right. 

Mr. BLOCH. Around 400. 

Senator FITZGERALD. Get prosecuted? That is a lot. 

Mr. BLOCH. That are referred out. Then of those that get through 

the Investigation Prosecution Division, I think we are talking about 

150 to 200 that actually go forward with continuing prosecution. 

Then if you are asking about the number of cases that actually go 

to the Merit Systems Protection Board, it is a smaller number. 

What that number is I cannot tell you, but it is significantly smaller, I believe. 

Senator FITZGERALD. Senator Akaka. 

Senator AKAKA. Thank you very much, Mr. Chairman. Mr. Bloch, 

as you know the OSC is responsible for working with agencies to 

ensure that employees know of their rights and protections when 

they believe they have been retaliated against. However, we are 

10

finding that employees are still unaware of their rights. Do you see 

any deficiencies that exist in law that prevent employees from 

knowing their rights and protections? 

Mr. BLOCH. Thank you, Senator. I believe this is a very important area that you have raised, and I thank you for your leadership 

in this area. I believe that the current law, the 2302(c) certification 

program is one area that is being under-utilized potentially. In addition to that, there is the education program, the ongoing education program and outreach program of OSC to the agencies. This 

is something that I feel strongly about. It is something that I have 

enjoyed tremendously in my current work in the Justice Department, is going not only to the public and educating and doing outreach, but actually going in among the agencies in the Federal 

Government. So there has been quite a bit of work, we have done 

interagency outreach and so on, that has been very helpful in educating employees and officials. I look forward to doing the same 

and on an expanded basis in the Office of Special Counsel. 

Senator AKAKA. Thank you, Mr. Bloch. Under both the whistleblower statute and the labor management statute, the President 

may exclude agencies from coverage of those laws for national security reasons. However, in the labor management context the President is required to issue an Executive Order when removing agencies. Would you support adding a similar requirement to the WPA? 

Mr. BLOCH. Senator, thank you. I do understand that there are 

a number of agencies that have been excluded in the past from certain personnel laws, and even currently we are facing a bill with 

the Department of Defense as well as Homeland Security which already has gone through and there have been discussions about, to 

what extent are the personnel laws going to be applied? Will the 

Secretary of an agency voluntarily agree to those provisions to be 

enforced? 

I do know that in the Department of Defense as well as in certain portions of Homeland Security, for instance, the prohibited 

personnel practices, especially whistleblowing rights, will still 

apply. So I think it is important that any bill that comes out spells 

out and is very clear about the need for employees to be informed 

of their rights and to specifically have this delegated to the agency 

officials. 

Senator AKAKA. Thank you. Federal employees are entrusted to 

serve the American public by helping the Nation prevent and recover from terrorist attacks, fighting crime and diseases, improving 

our economy, and protecting the environment. As such we must 

provide them with adequate protections for coming forward with 

information vital to an effective government. Based on your background and your experience in whistleblower issues, are there elements of any State or other whistleblower system that you believe 

should be included in the WPA? 

Mr. BLOCH. Thank you, Senator. I have reflected on this and the 

thing that concerns me most is that when you look at State law 

whistleblower claims, the common law in the majority of States in 

the United States, and certainly in the Midwest region where I was 

most familiar with, you find a sense in which the courts and the 

law that has developed has required employees to jump through 

hoops, and to use magic words and magic procedures, and that if 

11

they do not there is a sense of gotcha. I think the law should not 

be that way. I think the law has always been and always needs to 

be evenhanded, non-discriminatory, and not tilted in a particular 

person’s direction or company’s direction. 

So I think it is important, it is vital that the law reflect that 

sense of evenhandedness, and fairness, especially in the whistleblower area where there seems to have developed a kind of accretion of requirements that are not in the spirit of what a whistleblower is, which is someone who believes in accountability and who 

is actually trying to help the public or the company, or the government in this case, and yet they are retaliated against and punished, and that is wrong. 

Senator AKAKA. Thank you for that response, and thank you for 

your other responses, Mr. Bloch. 

Thank you, Mr. Chairman. 

Senator FITZGERALD. Thank you, Senator Akaka. I may just ask 

one more question before we are going to have to go into another 

hearing on actually a revision to the whistleblower laws. We are 

going to be considering a bill Senator Akaka is sponsoring. 

I wanted to ask you about veterans. Your responsibilities will include protecting the rights of veterans. They do get a preference for 

government employment. There will be a lot of reservists and servicemen and women who will be returning from Iraq and Afghanistan. How do you plan to protect the re-employment rights of veterans and reservists under the law? 

Mr. BLOCH. Thank you, Senator. I believe that protecting the 

rights of reservists, veterans, is very important to our country and 

to our integrity as a government. Just today or yesterday, I believe, 

there was an article in the Washington Post that reflected a problem with enforcement of the Uniformed Services Employment and 

Re-employment Rights Act, as well as veteran preferences. Since 

approximately a year ago there have been something in the order 

of 1,300 returning reservists and veterans from service to our country who have not been returned to their jobs or have not been given 

the employment benefits to which they are entitled. Very much like 

the whistleblower situation, we have people who are being, in a 

sense, punished for having served the public good and the country. 

We cannot do this. 

So I feel committed to this area as well as the other areas of the 

office, and we have tools within the Special Counsel’s law office, if 

I am lucky enough to be confirmed, that I can utilize such as the 

prohibited personnel practices concerning veterans preferences, 

2302(b)(11) as well as the USERRA Act. We have, to my understanding—the staff has told me at OSC that we have a good relationship with the vets office at the Department of Labor where 

they are now currently mounting a campaign to bring awareness 

to the public. I think their slogan is, ‘‘They Did Their Job. Let’s 

Give them Their Jobs Back,’’ or something to that effect. I fully 

support that. I will enforce the USERRA laws as well as veterans 

preferences vigorously. 

Senator FITZGERALD. Thank you very much, Mr. Bloch. Very good 

answers to our questions. I appreciate your appearance here today, 

and congratulate you and your family on your nomination. Please 

extend our good wishes to the rest of your children, all five of them 

12

who couldn’t be here, and good luck to you. We appreciate you having come today. 

Without objection, the hearing record will remain open for any 

additional statements or questions from Senators through 5 p.m. 

on Tuesday, November 18, 2003. 

If there is no further business to come before the Committee, this 

nomination hearing is adjourned and we will now take a 5-minute 

break while staff prepare for the legislative hearing on S. 1358. 

Thank you very much. 

[Whereupon, at 2:47 p.m., the Committee was adjourned.] 

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